Wellsville v. O'Connor

14 Ohio C.C. Dec. 689

• Court: Columbiana Circuit Court
• Decided: April 10, 1902
• Status: Published

Opinions

BURROWS, J.

Two causes are here decided — Wellsville v. O’Connor and Wellsville v. Harry Kirkbride.

O’Connor was convicted before the mayor of the city of Wellsville upon the charge of having committed the crime of assault and battery in violation of an ordinance of the city; was adjudged to pay a fine of fifty dollars and costs, and to stand committed to the workhouse till fine and costs were paid. This judgment was reversed by the court of common pleas on the-ground that the ordinance was invalid, and we are now called upon to review this judgment of the court of common pleas.

The ordinance is said to be invalid because the city was not authorized to create such offense, and because the ordinance does not conform to the requirements of Sec. 1694 Rev. Stat., which provides that “No. by-law or ordinance shall contain more than one subject, which shall be clearly expressed in its title.”

As to this second ground of complaint we are unanimous in the opinion that it is not well founded. The ordinance in question contains fifteen sections, defining fifteen separate offenses against the city. They all relate to one subject — the punishment of offenses against the city; and there is nothing in the ordinance upon any other subject, and nothing which is not clearly expressed in its title: “An ordinance to prohibit and punish certain offenses therein named, and for the more effectual preservation of peace and good order in the city of Wellsville, Ohio.”

We do not think that any discussion of this question is required, as it has been settled, in principle at least, by the Supreme Court. State v. Covington, 29 Ohio St. 102.

As to the other ground of objection to the ordinance — that it is not authorized by statute — we are not agreed;-but in the opinion of the majority of the court this objection is well taken.

The only disagreement between members of the court is upon the proper construction to be placed upon certain provisions of the statute. There is no dispute as to the essential facts of the case. It is an undisputed fact that the city of Wellsville undertook by ordinance to prohibit and punish the crime of assault and battery, defining it in the precise language adopted by the legislature in defining the offense; and that the authority of the city to enact the ordinance is given, if at all, by Sec. 1692 Rev. Stat., Par. 1, and Sec. 2108 Rev. Stat.

Neither is there any disagreement as to the general rules of law applicable to the case. It is agreed that the legislature can authorize a municipal corporation to prohibit and punish minor offenses, which are also punished by the state, whatever may be the law elsewhere. Koch v. State, 53 Ohio St. 433 [41 N. E. Rep 689].

The majority of the court think the following propositions are well settled by approved text writers and courts: That the prohibition of crimes and offenses lies within the domain of police power; that the exercise of police power is an exclusive prerogative of the state; that a municipal corporation has no inherent power to enact by-laws or ordinances for punishment of offenses; that it has only such powers as are clearly and expressly conferred upon it by the legislature, or must necessarily be implied in order to carry into effect those expressly granted; that where the legislature, by general law, has exercised its jurisdiction as to the punishment of an offense, there is a presumption of an intention to make its jurisdiction over such subject exclusive; and that in all cases where the grant is uncertain or doubtful the power must be denied.

These general propositions are fully established and illustrated by authority. 18 Am. & Eng. Enc. Law 739; Ravenna v. Pennsylvania Co. 45 Ohio St. 118 [12 N. E. Rep. 445]; Markley v. Mineral City (Vil.), 58 Ohio St. 430, 439 [51 N. E. Rep. 28; 65 Am. St. Rep. 776]; Dillon, Mun. Corp. (2 ed.) Secs. 301, 302; St. Louis v. Telephone Co. 10 S. W. Rep. 197 [96 Mo. 623; 2 L. R. A. 278; 9 Am. St. Rep 370]; Minturn v. Larue, 64 U. S. (23 How.) 435.

We now come to the only disputed question in the case — Was the city of Wellsville authorized by statute to make the crime of assault and battery an offense against the city? This must be determined from the sections of the statute referred to, which, so far as pertinent, read as follows:

“Section 1692. In addition to the powers specifically granted in this title, and subject to the exceptions and limitations in other parts of it, cities and villages shall have the general powers enumerated in this section, and the council may provide by ordinance for the exercise and enforcement of the same.

“1. To prevent riots, gambling, noise, and disturbance, indecent and disorderly conduct or assemblages, and to preserve the peace and good order, and protect the property of the municipal corporation and its inhabitants.”

“Section 2108. The council of a city or village shall have power to provide for the punishment of persons disturbing the good order and quiet of the corporation, by clamor and noise in the night season, by intoxication, drunkenness, fighting, using obscene or profane language in the streets or other public places, to the annoyance of the citizens, or otherwise violating the public peace by indecent and disorderly conduct, or by lewd and lascivious behavior.”

These sections are found in the same title and relate to the same subject matter — the maintenance of peace and good order in municipal corporations.

It may be assumed at the outset of the discussion that the contention of the city is narrowed down to the construction of a single clause in Sec. 1692 Rev. Stat.

Counsel for the city claim that the authorization of the council “to preserve the peace and good order” of the corporation, is an adequate and clear grant of power for the enactment of this ordinance; and they base their claim solely upon this clause.

This claim of the city is controverted and denied; and the counterclaim is made that Sec. 2108 Rev. Stat. limits the power of the city to pass ordinances to preserve the public peace.

Since a city has no inherent power to make by-laws or ordinances it is incumbent upon the city to demonstrate that the requisite power to pass this ordinance is 'expressly given, or of necessity implied in the language used in this clause.

The full import of Sec. 1692 Rev. Stat., as applicable to this contention, would read as follows:

Subject to the exceptions and limitations in other parts of this title, the council of cities and villages may provide by ordinance for the exercise and enforcement of the power “to preserve the peace and good order” of the municipal corporation.

This grant is not unlimited. Ordinances must be reasonable, and they must be appropriate to effect the purposes and objects for which they are authorized by the legislature. It is certain that the purpose of this statute was to permit the council to provide by ordinance for the punishment of disorderly conduct which disturbs or annoys the citizens of the corporation. To give it larger scope would extend the power beyond the necessities of the case and make its limit subject, substantially, to the discretion of the council.

There seems to be some difference of opinion between counsel as to the meaning of the word peace, as used in this statute. It is a word in common use among the people, and its meaning is well understood by them, and their understanding of its meaning is the same as that of lexicographers. The primary meaning according to Webster is, “A state •of quiet of tranquility; freedom from disturbance or agitation; calm; repose;” and Bouvier defines it as “The tranquility enjoyed by a political society, internally, by the good order which reigns among its members;” “a state of public order and decorum.”

The argument by which it is proposed to sustain this ordinance is, that authority to preserve the peace is equivalent to authority to prevent breaches of the peace; that assault and battery is in all cases a constructive and in many cases is an actual breach of the peace; therefore, authority to preserve the peace is authority to make assault and battery an offense against the city. When this conclusion is reached by this process of reasoning, the section under consideration will, in legal effect, have been amended so as to read as follows: That the council may provide by ordinance for the exercise and enforcement of the power to preserve the peace and good order of the city, and also to prevent breaches of the peace whether actual or constructive.

This argument, if valid, would authorize the council to punish by ordinance all offenders against the criminal laws of the stace; for the violation of any criminal law is technically and constructively a breach of the peace. In the opinion of a majority of tht court the peace mentioned in this section is not of the sort that passeth common understanding, and the power given and intended by the legislature is the power to suppress and punish those minor acts of misconduct that are commonly known and spoken of as public annoyances and disorders.

But it is useless to speculate or dispute as to what construction may reasonably be placed upon this clause of Sec. 1692 Rev. Stat., for the reason that the legislature has decided that question. The power to preserve the peace is given in general terms by Sec. 1692 Rev. Stat., and what the council may do to secure that end is definitely and unmistakably prescribed by Sec. 2108 Rev. Stat.

In express terms the powers granted by Sec. 1692 Rev. Stat. arc subject to the limitations in other parts of the same title; and this matter of preserving the peace is as fully controlled by the latter section as though it had been stated in Sec. 1692 Rev. Stat. that the power therein granted to preserve the peace was subject to the provisions of Sec. 2108 Rev. Stat. If attention is directed to the objects sought and purposes declared in the statute as to these two sections, we are brought to the same conclusion.

Section 1692 Rev. Stat., with its forty separate paragraphs and as many separate grants of power is, and by the title at the head of the chapter in which it stands, purports to be, a simple enumeration of the powers granted to municipal corporations, while Sec. 2108 Rev. Stat. is and purports by the head-note of Chap. 7, in which it stands, to be a full exposition of the power of the council as to the public peace. Nor is such specific restriction of power granted in Sec. 1692 Rev. Stat. by general language at all peculiar or exceptional in the matter of preserving the public peace. In many of the forty subdivisions of Sec. 1692 Rev. Stat. unqualified power is given to the council, and other provisions of the statute limit and direct the manner and extent of its exercise. The council, by this section, is authorized to appropriate land, to erect public buildings, to regulate ale, beer, and porter-houses and shops, etc.; and yet, would any one contend that specific legislation, directing how and when such power should be exercised, could be disregarded by the council because in the enumeration of powers the grant is given without qualification or limit? We believe it is a well settled rule of construction of statutes that all provisions relating to a given subject are to be considered and harmonized if possible and such construction adopted as will give effect to every part and provision. If Sec. 1692 Rev. Stat., Par. 1, is held to confer the power to pass any ordinance that may tend to preserve the peace or prevent an actual or technical breach of the peace, then Sec. 2108 Rev. Stat., that purports to mark out in plain terms the path the council must pursue to preserve the public peace, is without force or meaning. It is evident that the legislature intended to cover the whole field of public peace regulation in the latter section and not some small portions of it; and if that has been done the attempt to extract from Sec. 1692 Rev. Stat. the authority contended for must fail technically as well as actually. If we are right in our position that the claimed authority must be found if at all in Sec. 2108 Rev. Stat. the controversy comes to an end; for this section cannot, by any sort of microscopic analysis, be made to furnish authority to the council to make the crime of assault and battery a municipal offense.

It is a piece of legislation that carries the ear-marks of careful consideration. Its domain is outside of the criminal laws of the state and is a complete supplement of them in the matter of securing the peace and good order of the corporation. It embraces only such local and comparatively trifling misconduct as may cause disturbance and annoyance to citizens upon the streets or other public places; and allows the corporation to punish such misconduct, although it may be incidental to the commission of a greater offense made punishable by the state.

The concluding “otherwise” clause, must, by a familiar rule, be construed as limited to acts of disturbance and annoyance similar in circumstance and character to those precedently enumerated; and it must likewise be so limited because “indecent and disorderly conduct, or by lewd and lascivious behavior,” import such public disturbance and annoyance.

By insisting that this case'should be governed and decided by the provisions of Sec. 2108 Rev. Stat. we do not concede that the disputed power is conferred by Sec. 1692 Rev. Stat.; but on the contrary, we maintain that if Sec. 2108 Rev. Stat. were repealed or annulled by judicial construction or otherwise, the city of Wellsville would have no power to pass and enforce this ordinance for the following reasons:

1. Where an indefinite grant of power is given, such as “to provide for the general welfare,” “to make by-laws for the good government of the place,” etc., authority is not conferred upon the corporation, “to make an ordinance punishing an act (for example, an assault and battery) which is made punishable as a criminal offense by the laws of the state.” 2 Dillon, Mun. Corp. Sec. 302.

2. In some of our 'sister states the right of the legislature to authorize municipal corporations to put on their ordinance books the criminal laws enacted by the state, and thereby cause certain offenders to be twice punished for the same criminal act is denied. Savannah v. Hussey, 21 Ga. 80.

In this state, it seems, the legislature may in its discretion allow municipalities to duplicate all misdemeanors that are not required to be prosecuted by indictment.

Whatever disagreement may exist as to the propriety or legality of this duplication of punishment, it cannot be denied that its necessity is doubtful and that in practice it may be made vexatious and oppressive.

Certainly, the fact that assault and battery is punished by the state precludes the city from claiming the right to enact this ordinance on the ground of necessity. We venture the opinion that whenever a claim is made in behalf of a corporation for the exercise of superfluous and unnecessary power it should be supported by a legislative grant so explicit in its terms as to leave no reasonable doubt or question.

3. The argument that to preserve the peace is to prevent breaches of the peace, and that assault and battery is always in law, if not in fact, a breach of the peace, carried to its legitimate conclusion would give a municipal corporation the power to copy and pass into ordinances the whole body of state misdemeanors. We are not called upon to discuss other provisions of Sec. 1692 Rev. Stat., in which power is given to prevent riots and gambling, etc., and which can have no bearing upon the question under discussion.

If the legislature had granted the power to prevent assaults and batteries in Sec. 1692 Rev. Stat., and had not elsewhere in the statute limited the exercise of the power thus conferred, then a different question would be presented, and one analagous, perhaps to the grant of power to prevent riots, etc.

But power to prevent assaults and batteries is not contained in the grant to prevent riots, and if any inference is to be drawn from the mention of riots and the omission of assaults and batteries in this section, it would be, that power was given to punish the former and not given to punish the latter.

In this connection the inquiry is suggested why separate mention should be made of riots in this section. They are always actual as well as constructive breaches of the peace. Evidently the legislature did not have in mind the logic of the argument advanced on behalf of the city, or did not subscribe to its soundness.

After a somewhat thorough examination of the question the majority of the court are well persuaded that the ordinance ought to be held to be void, and the judgment of the court of common pleas is therefore affirmed.